Proportionality in perspective

Abstract

This article questions the received genealogy of proportionality, which traces its origins to continental European sources, especially German administrative law. The article goes back to Plato and Cicero, two defining writers on law and politics in the classical world. Analysis of their work reveals a richer role for proportionality in visions of public law, and how deeply that idea is embedded in classical conceptions of justice.
We see in Plato and Cicero two dimensions particularly worth noting. Proportionality is “rounded off” in relation to an overarching scale of values — it has a metaphysical or celestial quality. Proportionality “reaches out” to identify the relevant political community to which proportionate justice is to apply — which, in Cicero, has a universal or universalising tendency. Returning to the present, the article argues that the modern proportionality principle, while certainly attenuated when set against its classical forebears, shares some of the same features. In particular, modern conceptions of proportionality involve, whether explicitly or not, the phenomena of “rounding off” and “reaching out”; a point that is illustrated by referring to two different attempts to make sense of proportionality in common law judging. One, like Plato, turns inward to the (perceived) structure and values of the state. The other, following Cicero, turns outward in a search for more global standards of justice.